Opinion 07-137 CORRECTED
October 18, 2007
Please Note: This opinion is essentially unaffected by Opinion 16-29/16-50, as it does not address disposition of unexpended campaign funds at the close of the window period. Please see Opinion 16-29/16-50 for guidance on such issues.
Digest: (1) Based on the facts presented, a judge running for election to judicial office may use photographs in his/her campaign commercials and materials that were taken of the judge in his/her courtroom with visiting foreign dignitaries, and community and school groups.
(2) A judge running for election to judicial office may purchase a campaign advertisement by contributing to a charity so that the judge’s name, with the picture of a gavel, will be printed on a T-shirt to be given at no cost to participants in the charitable event.
Rules: 22 NYCRR 29.1; 100.4(C)(3)(b)(i), (iv); 100.5(A)(1)(e); 100.5(A)(2)(ii); 100.5(A)(6); Opinions 05-101; 98-97 (Vol. XVII); 96-46 (Vol. XIV); 94-67 (Vol. XII); 94-25 (Vol. XVII); Joint Opinion 92-70 and 92-84 (Vol. X); 89-61 (Vol. III); 87-16 (Vol. I); 87-02 (Vol. I).
Opinion:
A judge who is running for election to judicial office asks if he/she may use photographs in his/her campaign commercials and materials that were taken of the judge in his/her courtroom with visiting foreign dignitaries, and community and school groups. The photographs subsequently were published in a newspaper and/or a district administrative office newsletter.
This committee previously has concluded that a judge may not use photographs of himself/herself in a courtroom, for political purposes, as to do so could create the impression that the courthouse is being used for political purposes and, in particular, to facilitate a sitting judge’s candidacy. 22 NYCRR 100.5(A)(1)(e); Opinion 05-101. In the present inquiry, however, using the proposed photographs in campaign literature and advertisements is unlikely to create such an impression, as it appears that they were taken with administrative approval, and while the judge was hosting visitors to the court, and not while court was in session. It is the Committee’s view, therefore, that under these circumstances, the judge may use the photographs in his/her campaign commercials and materials. 22 NYCRR 29.1; Opinion 94-67 (Vol. XII).
The judge also asks if it is appropriate to make a donation to a charitable event, so that the judge’s name, with a picture of a gavel, will be printed on a T-shirt to be given at no cost to participants in the charitable event.
A judge who is running for judicial office may, during his/her Window Period, distribute promotional campaign materials. 22 NYCRR 100.5(A)(2)(ii); Opinion 98-97 (Vol. XVII). In addition, a judge may contribute to a charity from his/her personal funds; and may use campaign funds to place congratulatory advertisements or messages in charitable journals. Opinions 96-46 (Vol. XIV); 94-25 (Vol. XVII); Joint Opinion 92-70 and 92-84 (Vol. X). Similarly, the inquiring judge may contribute to a charity so that the judge’s name, with the picture of a gavel, will be printed on a T-shirt to be given at no cost to participants in the charitable event, so long as neither the judge’s name nor the prestige of judicial office will be used for fund-raising purposes. 22 NYCRR 100.4(C)(3)(b)(i), (iv); Opinion 89-61 (Vol. III). A candidate may not use campaign funds to make charitable donations unless they directly benefit the campaign, because charitable contributions per se are not a traditional part of the election process and are impermissible under our prior opinions, unless they are used to secure campaign-related advertising, goods or services, or to attend charitable events in furtherance of the candidate’s campaign. Opinions 87-16 (Vol. I); 87-02 (Vol. I); cf. 22 NYCRR 100.5(A)(6).